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Philip A. Bonadonna v. United States of America

August 18, 2011

PHILIP A. BONADONNA, PETITIONER,
v.
UNITED STATES OF AMERICA, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Simandle, District Judge

NOT FOR PUBLICATION

OPINION

Petitioner, Philip Anthony Bonadonna ("Petitioner"), filed a motion for reconsideration of this Court's May 31, 2011 Opinion and Order dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 for lack of jurisdiction and granting Petitioner leave to pursue his claims in a civil rights action. This motion is being decided without oral argument pursuant to FED.R.CIV.P. 78. For the following reasons, the motion will be denied.

I. BACKGROUND

Petitioner's underlying claims and the background of this case were explained in this Court's May 31, 2011 Opinion as follows:

Petitioner is a seventy-eight year old male who has been in the custody of the Bureau of Prisons for the past twenty-seven years. In his petition, Petitioner asserts that through a memo issued on March 15, 2011, prisoners were advised that Dr. Lopez would be evaluating all inmates who currently have a soft shoe pass to see if she can help with their foot problems. On March 18, 2011, Dr. Lopez examined Petitioner for an hour and twenty minutes and determined that he did not need a soft shoe pass, despite having had one for the past twenty-seven years. Petitioner requests "ordinary and necessary medical care for his feet by allowing him to keep his soft shoes."

See Docket Entry No. 2, Opinion at 2.

This Court dismissed the petition without prejudice for lack of jurisdiction because Petitioner's challenge to the revocation of his soft shoe pass, is the type of challenge to conditions of confinement that must be brought by way of a civil rights action or action for declaratory and injunctive relief, if at all. (See Opinion at 5.) This Court further found that:

[a] habeas corpus petition is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement, Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973), including challenges to prison disciplinary proceedings that affect the length of confinement, such as deprivation of good time credits, Muhammad v. Close, 540 U.S. 749 (2004) and Edwards v. Balisok, 520 U.S. 641 (1997). See also Wilkinson v. Dotson, 125 S.Ct. 1242 (2005).

(Opinion at 3-4.)

This Court ordered the Clerk of the Court to open a new civil action and file the petition as a complaint received therein. Petitioner was given thirty days to indicate his desire to proceed with his claims in the newly-opened civil action by submitting an amended complaint and either the $350 filing fee or a complete in forma pauperis application. (Order at 1-2.)

On June 7, 2011, Petitioner filed an appeal of the Court's May 31st Opinion and Order. (Docket Entry No. 4.) Thereafter, on June 29, 2011, Petitioner filed the instant motion for reconsideration currently pending before this Court. (Docket Entry No. 7.)

II. DISCUSSION

A. Legal ...


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